Is the divorce system in need of updating?

On 17 May, the Supreme Court heard its first case on divorce itself (Owens v Owens [UKSC 2017/0077]). The case has reignited the debate over the current divorce system in England and Wales which has been in place since 1973. In this case, the husband successfully defended his wife’s divorce petition on the grounds that the marriage had not, in actual fact, broken down irretrievably and that the allegations made were not true.

The Judges found that the wife’s allegations were not sufficient enough to justify the claim that it was unreasonable for her to remain being married to her husband. As a result, the wife was unable to procure a divorce and under the current law, she must remain married to her husband until they have been separated long enough for her to issue unilateral proceedings on the grounds of five years’ separation. This is a particularly rare outcome that has attracted a significant amount of media attention. The judgment shows that the law, as it stands, does not adequately allow an individual the means to promptly leave the marriage in the event that their spouse is not at material fault.

A recent study into defended divorce cases shows that less than 1% of divorces are defended and of those cases, less than 18% were defended on the basis that the marriage had not irrevocably broken down, with the majority being disputed on the basis that the accused party was not at fault. This suggests that the current fault based system is responsible for over 80% of divorce disputes.

This has spurred the debate of whether we should rethink the current law and introduce a “no-fault” divorce. Advocates of this change claim that it would lessen the financial and emotional impact of the already fraught divorce process. In 2015, 60% of English and Welsh divorces were granted on grounds of adultery or behaviour. In Scotland, figures where a divorce can be obtained by neither party admitting fault after one year (with consent) was 6%. In cases where neither party has committed any act or acts that can be considered unreasonable, the law forces the parties to either fabricate misdeeds or wait a minimum period of two years to formally divorce. It is rare that these cases proceed as far as Owens v Owens did, as the majority are settled out of Court; however eliminating the need to point blame or find reason, could lead to a more expeditious, less costly process.

The Owens case has certainly flagged up the importance of modernising the somewhat outdated and potentially prejudicial system and it will be interesting to see the long-term effects of this case and whether, following the controversy and media attention, a no-fault divorce system will be introduced.

If you would like to speak to us about a divorce or family matter, then you can contact Christian Abletshauser